In re SHIRLEY M., a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Shirley M., Respondent-Appellant).
Fourth District No. 4-06-0263
Fourth District
November 20, 2006
368 Ill. App. 3d 1187
John P. Schmidt, State‘s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
On February 24, 2006, respondent, Shirley M., was found to be a person subject to involuntary admission. Respondent was ordered hospitalized for no more than 90 days. Respondent appeals. We affirm. We note this court recently reached a different result, on somewhat different facts, in In re Sharon L.N., 368 Ill. App. 3d 1177 (2006).
I. BACKGROUND
On February 24, 2006, the trial court held an emergency involuntary-admission hearing for respondent. At the hearing, the court noted that respondent was not present and that respondent refused to speak with her attorney or attend the hearing.
Greg Donathan, a social worker assigned to respondent, testified that he discussed the involuntary-admission hearing with respondent. Donathan explained to respondent that she was going to have a hearing regarding whether she would stay or leave the facility. Donathan told respondent that the attorney who would represent her wished to speak with her. Respondent stated that she does not know the attorney and would not speak with him. Respondent refused to go into the lobby to speak with her attorney. Donathan explained that only staff are allowed past the lobby at the facility.
Respondent‘s appointed public defender, William Conroy, argued that respondent‘s attendance at the hearing was required under
Dr. James Myers testified that he attempted to interview respondent for the hearing but she refused to speak with him. Dr. Myers stated that he believed ordering the facility to bring respondent to the hearing against her will could be harmful to her physically and/or emotionally. The trial court found respondent‘s presence waived and proceeded with the hearing on the petition for involuntary admission.
After Conroy stipulated to Dr. Myers’ qualifications as an expert in the field of licensed clinical psychology, Dr. Myers testified that he had only known respondent for one day. Dr. Myers attempted to examine respondent the day before the hearing to determine her eligibility for involuntary hospitalization. Because respondent was uncooperative and did not want to speak with Dr. Myers, Dr. Myers was unable to inform respondent of the purpose of the examination and of her rights regarding the interview. Dr. Myers observed respondent in her bedroom and noted that she was still in her pajamas in the afternoon and appeared disheveled. Respondent looked, though, like she had been bathing and eating. Based on reviewing her records and in his professional opinion, Dr. Myers determined that respondent was able, with prompts and direction, to meet her basic physical needs in a structured supervised environment. If respondent were discharged, though, she would not be able to meet her basic needs without substantial help. Specifically, respondent would likely not take her medication. Dr. Myers relied on the fact that respondent has had multiple hospitalizations during the last six months, with the last one being a two-week hospitalization two months prior to this hearing. Other than respondent‘s physical appearance, Dr. Myers witnessed no other outward signs of mental illness. As a member of the treatment teams of all of the units in the hospital, Dr. Myers was on respondent‘s treatment team.
Dr. Myers diagnosed respondent with bipolar disorder and stated that, because of this mental illness, respondent is unable to provide for her basic physical needs so as to guard herself from serious harm. Dr. Myers further opined that the least-restrictive treatment plan for respondent would be an initial period of commitment for 90 days. The comprehensive physical, psychiatric, and social investigation, outlining respondent‘s physical examination, psychiatric evaluation, social investigation, and treatment plan, was admitted into evidence.
II. ANALYSIS
Respondent argues that her procedural due process rights were violated when the involuntary-admission hearing was held without her presence and without her having consulted with her attorney. Further, respondent claims that the State failed to prove by clear and convincing evidence that involuntary admission was warranted.
A. Procedural Due-Process Violation
We review de novo the issue of whether respondent‘s procedural due process rights were violated as the allegations involve only questions of law. In re George O., 314 Ill. App. 3d 1044, 1046, 734 N.E.2d 13, 15 (2000).
1. Section 3-805
Respondent first points to that fact that she did not confer with counsel before the involuntary-admission hearing.
In this case, respondent argues Conroy was prevented from conferring with her in violation of
Respondent, though, cites In re Barbara H., 183 Ill. 2d 482, 702 N.E.2d 555 (1998), to support her position. In Barbara H., the respondent was appointed a public defender. At the hearing on her involuntary admission, the public defender informed the trial court that the respondent told him that she had other representation, that the public defender does not represent her, and that she would not go to the hearing. Barbara H., 183 Ill. 2d at 494, 702 N.E.2d at 561.
The Illinois Supreme Court held that the respondent was entitled to representation of her choice and that the attorney the respondent explicitly rejected could not waive her presence at the hearing. Barbara H., 183 Ill. 2d at 495-96, 702 N.E.2d at 561. The supreme court stated that when the trial court was informed that the respondent had secured alternative representation and rejected the public defender‘s representation, the court should have first determined who represented the respondent before holding the hearing.
In this case, respondent did not reject Conroy‘s representation in favor of a different attorney. Respondent simply stated she did not want to speak to Conroy under any circumstances and did not want to attend the hearing under any circumstances.
2. Section 3-806
Respondent also points to
In this case, Conroy refused to waive respondent‘s presence at the hearing because he had not had a chance to speak with respondent. Dr. Myers testified that forcing respondent to attend the hearing would subject her to risk of physical or emotional harm. The trial court was informed at the beginning of the hearing that respondent refused to come to the hearing. Donathan‘s testimony indicated that respondent refused to attend the hearing no matter where the hearing was held. Respondent simply did not wish to participate in her hearing in any way and was not prevented from participating. The court was permitted under
Respondent argues
Respondent cites In re Michelle J., 209 Ill. 2d 428, 808 N.E.2d 987 (2004), to support her argument that no qualified witness testified at her hearing because Dr. Myers did not personally examine her. In Michelle J., the supreme court held that the involuntary admission of Sam S. could not be sustained because the requirements of
Michelle J.‘s case involved different circumstances. The testifying psychologist was unable to interview Michelle the day before the hearing because Michelle did not appear capable of making ” ‘an informed decision on whether or not to waive her rights.’ ” Michelle J., 209 Ill. 2d at 433, 808 N.E.2d at 989. “Unlike the expert in Sam‘s case, however, [the testifying psychologist] was directly involved in the respondent‘s care.” Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993. She served as a consultant to Michelle‘s treatment team and was able to meet with Michelle personally in a group session, apparently within 72 hours of the hearing. Accordingly, the supreme court could not say the requirements of
As to Sam S., the supreme court refused to read its previous decision, in Barbara H., “to permit recognition of an exception to the personal[-]examination requirement based on the expert‘s inability to conduct a personal interview.” Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991. The court also noted that in any event such an exception would be inapplicable to Sam S.‘s situation. Sam S. was capable of being interviewed prior to the hearing. Michelle J., 209 Ill. 2d at 436,
It is not clear what the rule would be if the respondent simply refused to speak with the doctor assigned to examine him or her. That situation was not presented in Michelle J., where Sam S. was not incapable of being interviewed prior to the hearing, and workers who had personally interviewed Sam S. prior to the hearing were not called purely because of “administrative convenience.” Nor was refusal to speak the focus of In re Barbara H., where that fact was not even mentioned in the opinion. It seems likely that in a case where the respondent simply refused to speak to the testifying worker, the court would follow Justice Thomas‘s special concurrence.
In this case, Dr. Myers falls between the two witnesses in Michelle J. Like the two witnesses, Dr. Myers did not personally examine respondent. Unlike the unqualified witness, though, Dr. Myers did work at the facility where respondent was held and no testimony suggested that other potentially qualified witnesses were able to interview respondent before the hearing. Like the qualified witness, Dr. Myers was a member of respondent‘s treatment team, he was able to personally observe her, and he was able to review her records.
Because Dr. Myers attempted to interview respondent and respondent refused to be interviewed by anyone for the hearing, Dr. Myers was a member of respondent‘s treatment team, Dr. Myers personally observed respondent, and Dr. Myers reviewed respondent‘s records, we find that the requirements of
Because respondent was afforded all of the procedural safeguards contemplated by the statute, respondent‘s due-process rights were not violated.
B. Clear and Convincing Evidence of Involuntary Admission
A person may be involuntarily admitted if it is established by
The trial court‘s finding that respondent was mentally ill is not in dispute. Dr. Myers’ testimony that respondent was suffering from the mental illness bipolar disorder was consistent with respondent‘s treating physician‘s diagnosis. On appeal, respondent does not dispute that she was suffering from this mental illness. Respondent claims, though, that the State did not prove that her mental illness rendered her incapable of providing for her own basic needs.
In determining whether respondent‘s mental illness renders her incapable to provide for her basic physical needs, this court has held that a court should consider whether that person “(1) can obtain her own food, shelter, or necessary medical care; (2) has a place to live or a family to assist her; (3) is able to function in society; and (4) has an understanding of money or a concern for money as a means of sustenance.” In re Jakush, 311 Ill. App. 3d 940, 944, 725 N.E.2d 785, 788 (2000). Because the trial court is in a superior position to determine witness credibility and to weigh evidence, we give great deference to the trial court‘s findings. Knapp, 231 Ill. App. 3d at 919, 596 N.E.2d at 1172. The court does not have to wait until respondent hurts herself or someone else before involuntarily committing her. In re Manis, 213 Ill. App. 3d 1075, 1077, 572 N.E.2d 1213, 1214 (1991).
In this case, Dr. Myers testified that respondent could only meet her basic physical needs in a structured, supervised environment where she would receive substantial help. “Expert opinion regarding mental illness and inability to guard oneself from harm must be in the form of explicit medical testimony, based upon a clear and convincing factual basis.” Bennett, 251 Ill. App. 3d at 888, 623 N.E.2d at 943. While Dr. Myers was not able to interview respondent, he was able to review her records. Respondent‘s comprehensive psychiatric evaluation, authored by Dr. G. Midathala, showed that respondent had
Respondent argues, though, that the State presented insufficient evidence to show that involuntary admission was the least-restrictive alternative. Dr. Myers’ treatment plan was admitted into evidence. The plan outlined the incident that led to respondent‘s current hospitalization and stated that the hospital‘s staff reported that respondent has become more impulsive, more dangerous, and more erratic. The plan stated that respondent‘s symptoms of mental illness have become exacerbated to the extent that they are interfering with her ability to remain appropriate in a community setting as evidenced by her bizarre behavior and delusional statements. Based on the information in the treatment plan and Dr. Myers’ opinion that involuntary admission was the least-restrictive alternative, the trial court‘s finding that respondent is a person who is mentally ill and who because of her illness is unable to provide for her basic physical needs so as to guard herself from serious harm is not against the manifest weight of the evidence.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court‘s judgment.
Affirmed.
STEIGMANN, J., concurs.
Shirley M. was absent from the hearing where the trial court approved her involuntary admission. The lawyer who represented her at the hearing never saw or spoke to her. A clinical psychologist testified it would be harmful to order the facility to bring Shirley M. to the hearing against her will. The same clinical psychologist diagnosed her and opined as to her need for involuntary treatment even though he did not examine her, inform her of the purpose of the examination, or inform her as to her rights.
The majority concludes Shirley M. was uncooperative, refused to attend the hearing, refused to see or talk to her attorney, did not want to speak to the clinical psychologist, and was afforded all the procedural safeguards afforded by the statute. I disagree.
Shirley M. cannot thwart the court process by refusing to cooperate, but the State cannot prevail by presenting scant evidence of her lack of cooperation and making no effort to accommodate her right to counsel. No evidence supports the clinical psychologist‘s opinion it would be harmful to require her to attend the hearing against her will. Her attorney asked to be allowed to see and speak with his client in her room or within her residential hall. The facility, the prosecutor, and the trial court made no effort to accommodate her right to counsel. The clinical psychologist‘s single failed attempt to examine or interview Shirley M. and advise her of her rights does not constitute a good-faith effort to comply with the statute.
Shirley M.‘s liberty was at stake. The right to counsel is fundamental. Her lack of cooperation does not trump her right to due process or the responsibility of those who seek to confine her to make a reasonable and measured effort to accommodate that right. I would reverse.